Important legal topics are highlighted in the 2021 Integrated Report. Significant developments occurred in relation to the following legal issues in the first half of 2022.
Procedure regarding additional financing contributions for Stuttgart 21
At the end of 2016, in order to avoid risks under the statute of limitations, we initiated proceedings in the Stuttgart Administrative Court against the project partners seeking additional financing contributions on the basis of what is known as the negotiation clause. We submitted our surrejoinder in June 2021, to which the defendants responded in a timely fashion in early 2022. No further pleadings have been filed at this time. We assume that the court will not schedule a hearing before the fourth quarter of 2022 at the earliest.
Civil proceedings on infrastructure utilization fees
A large number of disputes relating to train-path and station fees are still pending with the civil courts. This concerns the question of whether, and according to which standards, the civil courts may actually subject the regulated fees to a further civil court assessment. According to a judgment by the German Federal Supreme Court (Bundesgerichtshof; BGH) in 2011, rail infrastructure usage fees charged on the basis of the legal situation before the entry into force of the ERegG could be reviewed by civil courts for their cheapness on the basis of Section 315 of the German Civil Code (Bürgerliches Gesetzbuch; BGB), even if they were effective under regulatory law. The European Court of Justice (ECJ) ruled in 2017 that a review of the cheapness of infrastructure charges by civil courts in accordance with Section 315 BGB is incompatible with European railway law.
However, the BGH continued to adhere to an antitrust law review by the civil courts. On February 8, 2022, the BGH issued final rulings for the first time, requiring DB Netz AG to repay regional factor fees. At the same time, the question of whether civil courts may conduct antitrust-law reviews of regulated rail infrastructure charges in the absence of a final decision by the regulatory body is still pending before the ECJ. The Advocate General of the ECJ answered this in the affirmative in her written opinions dated April 7, 2022, but these are not binding on the ECJ judges. The ECJ is expected to deliver a decision on this in 2022.
Abuse proceedings initiated by the Federal Cartel Office regarding online sales and distribution
In administrative proceedings against DB AG conducted by the Federal Cartel Office (Bundeskartellamt; BKartA) since 2019, the Federal Cartel Office sent DB AG a draft decree, known as a warning letter, on April 14, 2022. According to the preliminary assessment, the Federal Cartel Office accuses DB AG of improperly hindering its online sales service providers who sell tickets for DB AG as commercial representatives. DB AG has commented on the allegations and is in dialog with the BKartA. The proceedings concern new legal issues relating to online sales and distribution, for which established case law and administrative practice has been lacking to date.